Navigating a divorce can be overwhelming with countless decisions, especially when it comes to legally ending your relationship. In the past, the go-to was taking the divorce to court. However, nowadays, there are alternatives, and the most common one is mediation. Today, we will discuss which is the right option for you, divorce mediation vs litigation.
What Is a Litigated Divorce?
When spouses can’t agree on things like child support, spousal maintenance, or dividing properly, and one spouse files for divorce in court, it’s called a “litigated” divorce.
The one who files, known as the “petitioner,” asks the court to decide how the divorce should go through a set of legal steps. Both the court and the spouses have to follow specific rules and stick to deadlines.
A litigated divorce often takes a year or more to finish. It usually wraps up with a court trial, where a family court judge oversees the process. Even though spouses can represent themselves, many choose to hire lawyers for advice, presenting their arguments, and handling court procedures.
During a litigated divorce, the couple can agree on things at any time, but it’s common for settlements to happen just before the trial. Courts have tight schedules and a limited number of family court judges, so litigated divorces often take a year or even longer.
What Is Divorce Mediation?
Divorce mediation is a way for couples to resolve issues without going to court. It’s an “alternative dispute resolution” (ADR) method, meaning it’s an alternative to long and expensive court battles. The goal is to help couples reach agreements in a non-confrontational setting, usually the mediator’s office, without needing to file anything in court.
To start mediation, a couple hires a mediator. There’s no need for court filings at this stage. It’s a simpler and less formal process compared to traditional court proceedings.
Mediators don’t make decisions about the divorce outcome. Instead, they guide couples in finding compromises. Once an agreement is reached, it’s kind of like an uncontested divorce.
The result is a marriage settlement agreement drafted by the mediator, detailing the agreed-upon terms. This approach keeps things more manageable, less stressful, and avoids the complexities of a court battle.
The mediation process can take place in one session or stretch across several weeks. How long it lasts depends on a few factors.
Factors That Affect a Mediation Process
- Number of Topics: If there are more things to discuss, it might take more time.
- Complexity of Topics: If the issues are complicated, like dividing a lot of property, it could extend the process.
- Time Between Sessions: The breaks between sessions also play a role. The longer the intervals, the more time it takes.
- Cooperation Between Spouses: The willingness of both partners to work together affects the speed. More cooperation generally means a smoother and faster process.
Considering these factors helps tailor the mediation duration to the unique circumstances of each couple.
Couples who choose mediation have more control over the divorce process compared to those who go for a traditional litigated divorce. This is especially true when it comes to scheduling and pace.
While some mediators allow spouses to bring their lawyers, many prefer representing themselves. Some spouses might hire an attorney for advice behind the scenes. However, most mediators discourage having lawyers attend mediation sessions. The aim is to promote cooperation and ensure that the sessions remain non-confrontational. This helps create an environment where both parties can work together more effectively.
What Is the Difference Between a Divorce Mediator and a Divorce Lawyer?
A divorce mediator and a divorce lawyer have distinct roles, and their backgrounds vary. Divorce mediators can be accountants, financial experts, psychologists, social workers, or marriage and family therapists (MFTs). Some are also lawyers. Generally, non-lawyer mediators charge less than their lawyer counterparts.
Even if many mediators are lawyers, it’s crucial to understand their role. A mediator cannot act as a lawyer for either spouse. When lawyers serve as divorce mediators, they shift from their typical advocacy role to become guides. Their job is to steer spouses toward a resolution. Regardless of their background, all mediators, including lawyers, must stay neutral during discussions and avoid giving legal advice to the spouses.
If mediation succeeds, most mediators, regardless of their profession, will create a written agreement. The next steps depend on state laws. In some states, non-lawyer mediators can file divorce papers with the court. However, in some cases, they may only prepare the paperwork without filing. It’s important to ask about the specific services a mediator provides and understand any tasks you might need to handle yourself.
What Happens After a Successful Mediation?
Only a judge has the authority to officially end your marriage. Even if your mediation was successful, you still need to complete the divorce process. After reaching a settlement agreement with your spouse, the court will review it and issue the final decree of divorce.
It’s essential to understand that the need to submit a settlement agreement to a judge doesn’t impact the choice between litigating or mediating. Regardless of the method chosen, the court must issue the final decree of divorce. However, if you successfully mediate and achieve an uncontested divorce, the court can finalize the process more swiftly.
What Is the Cost Difference Between Divorce Mediation and Litigation?
In both litigated and mediated divorces, filing fees are necessary. However, the cost of litigating a divorce is typically much higher.
In mediation, the main expense is the mediator’s fee, usually split between the spouses. The cost for a typical divorce mediation can range from $3,000 to $8,000.
If you opt for a litigated separation and hire an attorney, you are responsible for paying their fees. This includes not only appearances in court but also the work your lawyer does outside of the courtroom. The longer the divorce process takes, the more work your attorney will need to do, leading to higher costs.
Lawyers Are the Most Expensive Part of Divorce
Lawyers are often the most expensive part of a divorce. Mediation is generally cheaper than litigation because you don’t necessarily need an attorney to represent you throughout the process. While you can consult an attorney if you wish, they don’t have to attend every mediation session, saving you money. Many mediators recommend that both spouses consult their own attorneys to review the settlement agreement before signing it.
In a litigated separation, having an attorney isn’t mandatory, but navigating the complex court system on your own can be challenging. Judges assume that, even without an attorney, you should know and adhere to court rules and make arguments based on established law. Learning and applying the law can take years, which is why people going through a litigated separation often hire an attorney.
Even if you don’t hire an attorney for mediation, there may be additional costs. Other professionals, like appraisers or accountants, might be needed to assist with the process. For instance, determining property value or calculating pension plan distribution may require their expertise. These costs are inevitable and are the same for both mediated and litigated separations.
However, in a litigated separation, working with these professionals can be more expensive as they may need to be paid for court appearances and testimony, or for preparing a report for the court.
Who Should Consider Divorce Mediation As a Solution?
Couples looking to cut costs might find mediation a good option. It’s essential for most people to carefully consider the pros and cons of mediation.
For mediation to work, both spouses must be committed and willing to compromise. If you or your partner are gearing up for a heated battle, mediation is less likely to succeed.
Mediation requires a level playing field. If one spouse has the upper hand, mediation won’t be effective. In cases of ongoing domestic abuse, the victim should have professional representation. Similarly, mediation may be difficult with narcissistic spouses who believe they’re always right.
Dishonesty can derail mediation. If a spouse is suspected of hiding assets, reaching a fair settlement becomes impossible without honesty from both parties.
If your spouse has hired an attorney or is blaming you for the divorce, it’s advisable to get your own lawyer.
Mediation can be an option if you can’t resolve all issues during your divorce. You might still be able to resolve some problems, reducing the number of issues that need litigation.
Final Thoughts: Divorce Mediation vs Litigation
Choosing divorce mediation is a smart move because it’s cost-effective and collaborative. It provides a smoother path to resolution. However, before jumping into mediation, it’s essential to seek legal advice. This ensures you fully understand your rights and responsibilities. Combining the benefits of mediation with legal guidance allows couples to navigate the complexities of divorce confidently.
If you find yourself in need of assistance with your divorce in Florida, don’t hesitate to reach out to Successful Solution. Book a consultation today!